ACLU: Electronic Spying Skyrocketed 64% Since President Obama Took Office

Since the ACLU's FOIAs to get the Justice Department's 2010 and 2011 "pen register" and "trap and trace" surveillance reports were ignored, the ACLU sued to get them. Documents revealed that the number of people targeted by these orders tripled. Between 2009 and 2011, the number of orders skyrocketed 361 percent! The ACLU said, 'More people were subjected to pen register and trap and trace surveillance in the past two years than in the entire previous decade.'

When Congress has setup a reporting system in order to provide transparency about surveillance performed by the Department of Justice, how sad is it that the ACLU has to sue in order for the public to see those 'transparency' reports? While that can't be good on any level, it almost assured that the news would be terrible . . . and it is. The ACLU released Justice Department documents which show a 64 percent growth in electronic spying since President Obama took office.

First the ACLU filed Freedom of Information Act requests, but when the FOIAs went unanswered, the ACLU sued to get the 2010 and 2011 "pen register" and "trap and trace" surveillance reports. A pen register snags "non-content" outbound information in real-time, such as what phone numbers are dialed as well as the sender and recipient of emails sent. Trap-and-trace orders spy on the same information only it targets inbound communications. It does not require a probable cause warrant. Between 2009 and 2011, the number of these pen register and trap-and-trace orders skyrocketed 361 percent.

Despite the spike in spying, the Justice Department says that our civil liberties were safeguarded since the surveillance first required court approval. However ACLU attorney Catherine Crump said it is a "rubber stamp" court approval with no meaningful review by a judge. Naomi Gilens, with the ACLU's Speech, Privacy, and Technology Project, explained, "The number of people whose telephones were the subject of pen register and trap and trace surveillance more than tripled. In fact, more people were subjected to pen register and trap and trace surveillance in the past two years than in the entire previous decade."

Long ago, such surveillance required physical devices to tap into phone lines for spying. Now that type of "interception capabilities are built into the phone companies' call-routing hardware," the ACLU explained. To say that non-content information collected about people involves a "lack of privacy interest" is utterly false. "Non-content information can still be extremely invasive, revealing who you communicate with in real time and painting a vivid picture of the private details of your life." The ACLU added, "Think what law enforcement agents could learn about you by having real-time access to whom you email, text, and call. The low legal standard currently applied to pen register and trap and trace devices allows the government to use these powerful surveillance tools with very little oversight in place to safeguard Americans' privacy."

The Justice Department submitted the 2010 and 2011 reports to Congress, so our lawmakers were privy to the transparency reports that reveal the extent the government is spying on the private communications of Americans. Yet those same reports were filed away, leaving Americans in the dark as opposed to the light and the transparency that the reports were supposed to serve.

Democracy and transparency reporting, a system of checks and balances, implies that if spying grows out of control, then citizens would learn of it. But years after it took place, we are only now learning that there was a "sharp increase" in surveillance. Even sadder, this is but a fragment of the spying that occurs because it does not include the 1.3 million customer cell phone records that wireless carriers handed over to law enforcement in 2011. Then the ACLU found that the "government is routinely violating American's privacy rights through warrantless cell phone tracking."

The ACLU chart shows the sharp increase for pen registers and trap-and-trace to spy on phones increased over 60%. Orders to spy on email and Internet communications went from about 250 pen register and 200 trap-and-trace orders in 2009 to about 800 orders of each in 2011.

The ACLU pointed out that these "reporting requirements apply only to surveillance performed by the Department of Justice." The Pen Register and Trap & Trace FOIA Reponses included information about: the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Drug Enforcement Agency (DEA), Federal Bureau of Investigations (FBI), the United States Marshals Service (USMS) as well as Judge and District Reports. "We have no idea of how or to what extent these surveillance powers are being used by other law enforcement agencies, such as the Secret Service, Immigration and Customs Enforcement, or state and local police," the ACLU wrote. "As a result, the reports likely reveal only a small portion of the use of this surveillance power."

Today, the ACLU released even more documents which shed light on other telecom surveillance techniques. There is no court oversight for how law enforcement gets the cell phone data about Americans from the phone companies. Although most law enforcement agents are "good public servants" there is a history of agents and agencies that are not. The ACLU wrote, that some "abused their power to the detriment of individuals' liberty. It is for that reason that, as technology gets smarter and smarter, we need to make sure that legal protections keep pace."

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